Robertson v. Read

• Decision Date: 01 November 1889
• Citation: Robertson v. Read, 14 S.W. 387, 52 Ark. 381 (Ark. 1889)
• Parties: ROBERTSON v. READ <I>et al.</I>
• Court: Arkansas Supreme Court

14 S.W. 387

ROBERTSON v.READ et al.

Supreme Court of Arkansas.

November Term, 1889.

Appeal from circuit court, Drew county.

W. S. McCain and Wells & Williamson, for appellant.W. F. Slemons, for appellees.

HEMINGWAY, J.

This is a suit by the widow and heirs at law of one Bob Robertson against Brass Robertson, his brother, to establish a trust in a tract of land.The material facts of the case are as follows: In 1871 or 1872 one Thomas Trotter sold the land to Bob Robertson on a credit, for $660, giving his title-bond, and taking notes for the purchase money, bearing interest until paid at 10 per cent. per annum.Bob Robertson entered into possession, and occupied the land as a homestead, Brass, who was younger, living with him.Bob paid $160 on the notes.In 1874, he fled the country, leaving his wife, children, and brother in possession of the land.In 1875, after the last of the purchase-money notes had matured, Trotter notified Brass that, unless they were paid, he would proceed against the land.Brass procured the title-bond from Bob's wife, and returned it to Trotter, who, intending to cancel the sale, destroyed it and the notes.The payment made by Bob liquidated the interest, but did not reduce the principal of his debt.Brass and Bob's family remained upon the land during 1875 as tenants of Trotter.About the close of that year, Trotter sold the land to Brass.He paid part of the price in cash, and gave his notes for the balance.He received a bond for title.He subsequently paid the notes.It does not appear from the evidence that Brass acted otherwise than in good faith, either in attempting to cancel the bond to Bob or to acquire title to himself.When he purchased, there was due on Bob's notes $660, and there were 20 acres of the land in cultivation, of the rental value of $3 per acre per annum.The land is not shown to have had any other rental value.Brass subsequently cleared more of the land, and made other improvements.He asks that he be paid therefor in case his title fails.The court below found that Brass had received assets from Bob to apply on his notes, which, with the rents received by him, were sufficient to extinguish them.As to such assets, the testimony is very indefinite and unsatisfactory, and we cannot find that any were received by Brass for that purpose.The effect of the title-bond to Bob was to vest in him an equitable title to the land, and to retain in Trotter the legal title as security for the purchase money.The return of the bond to Trotter was made without Bob's knowledge or consent.Such being the case, Trotter did not acquire Bob's title by its delivery to him and the destruction of the notes.

When Brass took possession under his purchase, he held, not as owner, but...